Rethinking Recognition : Transnational Families and Belonging in Law

(1)

Faculty of Law University of Helsinki

Helsinki, Finland

RETHINKING RECOGNITION: TRANSNATIONAL FAMILIES AND BELONGING IN LAW

Sanna Mustasaari

ACADEMIC DISSERTATION

To be presented, with the permission of the Faculty of Law of the University of Helsinki, for public examination in Suomen Laki -sali (PIV),

Porthania, on 20 October 2017, at 12 noon.

Helsinki, Finland 2017

(2)

ISBN 978-951-51-3717-3 (pbk.) ISBN 978-951-51-3718-0 (PDF) Unigrafia

Helsinki 2017

(3)

ABSTRACT

This dissertation consists of six thematically related articles that from different perspectives examine the ways in which transnational families, their relationships, and their practices of family formation are recognised and regulated in law. The dissertation traverses three fields of law: family law, private international law and migration law.

The dissertation investigates how transnational family relationships come to assume legal character, how and for what purposes ‘legality’ is invoked and what meanings it bears. It analyses the ways in which the recognition of transnational family relationships generate belonging or non-belonging and how these belongings are constructed in legal practice and argumentation.

The methodological approach adopted is described as “multi-sited”. The study examines the research subject at four different sites: Muslim marriage practices in Finland; religion, culture and the concept of gender equality within the framework of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly; legislation in the Nordic countries on family reunification; and selected court cases on family reunification from the Supreme instances in Finland and Sweden, and the European Court of Human Rights and the Court of Justice of the European Union. At each site, research material differs and consequently different methodologies are applied, but the overall theoretical framework of the dissertation is socio-legal, and feminist intersectionality in particular is used as an analytical approach.

Article I, ‘Between “official” and “unofficial”: Discourses and practices of Muslim marriages in Finland,’ draws on qualitative data from interviews with imams and other staff in eight Helsinki-based mosques, individuals, and bureaucrats; and cases collected from four local register offices and three district courts. It traces the ‘legality’ of Muslim marriages in mosques, practices of selected individual Muslims, and state institutions concerned with the registration and validity of marriages. It applies the method of ethnography combined with an empirical analysis of a large body of cases collected through the district courts and local register offices.

Article II, ‘CEDAW and the Riddle of Diversity: Can Culture, Traditions or Religion Justify Economic Inequalities Embedded in Family Laws?’, focuses on the issue of culture and human rights law through a discussion of the concept of equality underpinning the Convention on Elimination of Discrimination Against Women (CEDAW) in the context of its Article 16, which addresses equality in the family, in particular the economic consequences of marriage, family relations and their dissolution, an issue on which the Committee adopted its 29th General Recommendation in 2013. The method and approach of the article is largely a review of existing feminist and family law literature, and research on the context of culture and women’s rights, against which the discussion about equality and legitimacy of the CEDAW framework is set.

(4)

Article III, ‘Ruling on belonging: transnational marriages in Nordic immigration laws,’ examines the immigration regimes concerning marriage migration in the Nordic countries, all of which have introduced considerable restrictions on family reunification in their Aliens Acts in recent years. The article examines the contextual background to the regulation of transnational families in the migration law of the Nordic countries respectively, and points out how the conceptions of belonging underpin these bodies of law. It demonstrates, furthermore, that due to the current high income requirements, the right to family reunification remains unachievable for a significant number of individuals.

Both Article IV, ‘The “nuclear family paradigm” as a marker of rights and belonging in transnational families,’ and Article V, ‘The married child belongs to no one? Legal recognition of forced marriages and child marriages in the reuniting of families,’ argue that, by invoking the discourses of status and relationship, the tensions and intersections of different legal fields of private international law, family law and migration law are controlled and manipulated, all the while the image of unitary law is still rigidly maintained. Article VI, ‘Best interests of the child in family reunification - a citizenship test disguised?’ examines how the rights of the child become paradoxical when applied as part of the proportionality assessment used for the purposes of family reunification. The article also shows how a non- belonging identity is actively constructed for a citizen-child in the argumentation of the case.

In these three articles, in terms of describing the legal problem at the centre of the case, the method pursued is dogmatic. Articles V and VI each offer a close reading of a particular case, which enables a detailed analysis of the discursive identity construction which occurs as the court constructs its argumentation. While the method of description is doctrinal, the method of analysis is not purely dogmatic.

The dissertation concludes that citizenship is a discontinuous legal artefact, which even in its legal dimensions is, more than a mere legal status, a dynamic form of social capital, a shaped and accumulated construction, determined by a plethora of identity factors marking the belonging of a person both in the family and in the national community.

Finally, the dissertation explores whether recognition theory, as developed most notably by Axel Honneth, might offer grounds for rethinking the parameters of social justice, in particular in the context of transnational family life and social exclusion. The dissertation develops the notion of intersectionality and intersectional approaches to legal research, and combines them to provide a distinctively legal method for reading the cases.

Theoretically, the dissertation contributes to the on-going debates over the ways in which social justice should best be conceived of by developing a recognition-theoretical account of belonging and social relations in law. The dissertation adds to the growing body of research on transnationalism studies from the specific perspective of legal research.

(5)

ACKNOWLEDGEMENTS

I began working on this study in the summer of 2011, without having much of an idea what conducting research would be like. The past six years of this journey have taken me to places, both actual and ideational, I had never visited before. Many of those places I will remember for the rest of my life. On this journey, I have been fortunate to meet many inspiring new people and get to know my old friends better. Although I can’t mention everyone by name, I want to thank everyone with whom I have worked and from whom I have had the pleasure and privilege to learn.

First, I want to thank my supervisors. Professor Urpo Kangas has supported me from the very beginning of my scholarly career. Urpo encouraged me to follow my intuition and believed in my abilities to conduct independent research, although it sometimes meant a step beyond the traditional paradigm of research in family law. Thank you Urpo for that leap of faith!

Senior Lecturer Marjo Ylhäinen kindly agreed to take the task of being my second supervisor a year and a half ago. Since then Marjo has helped me in all possible ways to get to this point. Marjo, I would not have been able to complete this work without you. Thank you for listening to my (often frustratingly vague) ideas, sharing your insightful thoughts, introducing the concept of Friday papers, ammu-coffees, bearing with me the countless times that I had to reschedule, and for your extremely important contribution in helping me edit the text at the very last stages of the process. Thank you for everything you did, which often went way beyond what one could expect of a supervisor – for example driving me to Lammi so that I could focus on writing.

And above all, thank you for being such a wonderful friend.

I owe much to Professor Maarit Jänterä-Jareborg, whom I count as my supervisor too. Maarit helped me to get started with studying family law and religion. Thank you for the willingness to always share your knowledge and experience, and for opening the doors for me to an international community of scholars, through your networks and, for example, the IMPACT programme and The Hague Academy of International Law. On so many occasions I have been deeply impressed by your expertise and the respectful openness with which you encounter colleagues, both those who already have achieved distinguished positions and those who are just setting out on their academic careers.

I could not be more grateful to the pre-examiners of this work, Professor Betty de Hart, who kindly accepted the invitation to act as my opponent in the public examination, and Docent Reetta Toivanen. You both gave me insightful suggestions as to how to improve this work. Both of you have inspired me through your work over the years, and it is an honour to have you comment my work. Thank you Betty and Reetta.

Docent Mulki Al-Sharmani co-authors one of the articles included in this thesis, so the thesis literally would not be the same without her. But even beyond this contribution, Mulki’s impact on my work has been profound.

Thank you, Mulki, for being my mentor and teacher, and my friend. Mulki has

(6)

been a primus motor also in the project in which I have been working since 2013: Transnational Muslim Marriages: Wellbeing, Law, and Gender, led by Docent Marja Tiilikainen. Working in this project has enriched my theoretical understanding of law and its relations to society and everyday life through all that I have learned from anthropology, sociology, and Islamic feminism during the project. Thank you Marja, Mulki, Linda Hart and Abdirashid Ismail. A special thanks to Linda for commenting on so many texts.

One of the most significant sources of joy and inspiration for the past couple of years has been the research group ‘Legal Language of Moral Struggles’ with Senior Lecturer Samuli Hurri, Kati Nieminen, and Ukri Soirila.

I am grateful to Samuli for inviting me to join this group and for all three of you for making our meetings and seminars so incredibly rewarding. You are intelligent, wise and loving individuals – my sincerest thanks for sharing your thoughts with me. And thank you for always making me feel welcome.

Senior Researcher Anna Mäki-Petäjä-Leinonen has been my closest colleague and friend in family law, and she has steered the study group in ‘soft family law’, which I have had the pleasure of being part of, together with Katja Karjalainen, Kirsikka Salminen and Tanja Mikkilä (thanks guys!). Anna, you are the heart and soul of many networks, communities and get-togethers, thank you for including me in them. Thank you also other friends and colleagues in the field of human rights, family and child law: Markku Helin, Kirsti Kurki-Suonio, Tapani Lohi, Pekka Tuunainen, Antti Kolehmainen, Hanne Tolonen, Salla Silvola, Outi Kemppainen, Virve Toivonen, Henna Pajulammi, Kaijus Ervasti, Laura Kalliomaa-Puha, Milka Sormunen, Liisa Nieminen and Suvianna Hakalehto. I especially want to thank Professor Anne Griffiths for her support and guidance. Anne and Ed, thank you for welcoming me and my family in Edinburgh.

Senior Lecturer Dorota Gozdecka and Associate Professor Magdalena Kmak have been particularly important people for me from the very outset of my doctoral studies. Thank you especially for involving me in the ‘Law and the

“Other”’ project. You guys rock! Thank you also other friends and colleagues whose work has been most inspiring: Tiina Paloniitty, Sonal Makhija, Alexander Gurkov, Ketino Minashvili, Eliška Pírková, Alexis Huldén, Timo Enroth, Iina Tornberg, Marta Maroni, Massimo Fichera, Saara Pellander, Anna-Mari Tapaninen, Pamela Slotte, Susanne Dahlgren, Kaius Tuori, Panu Minkkinen, Kevät Nousiainen, Tuuli Hong, Lisa Grans, Raimo Siltala and everyone else I have had the pleasure of sharing thoughts with and learning from.

I cannot thank enough John Calton MA, lecturer in English, who helped me to improve the language of the synthesis of this dissertation. John’s possibilities to work with the text were limited by the tight schedule for the completion of the dissertation, so any remaining infelicities or language errors are my own. The tight schedule also meant that eventually I was not able to take many colleagues who offered help up on their generous offers to read and comment on the synthesis.

Finally, family and friends. I have been fortunate to have such wonderful people form the circle of my nearest and dearest. Emppu, thank you for being my wise friend and for sharing this journey all the way from Topelia where we used to study for the entrance exams. Kaisa and Emma, it has been invaluable to have two friends working on their PhDs at the same time in different

(7)

disciplines; the ‘helpdesk’ was always only one phonecall or facebook message away, and the advice was never ‘have you tried turning it off and on again’.

Together with Kaisa P., you guys saved the day more than once. There just are no words for it, but: <3 <3 <3’’ < 3 !!!!

I owe a great deal to my parents, Tapio and Sirpa and Mika. Thank you for your love and support and for helping our family in countless ways. This path I chose to follow surely would have come to a dead end had you not been there for me and my children on so many occasions. A big thanks goes also to my mother-in-law, Sirkka, for all the help. To my brother, Petteri, I just want to say that I love you. Thank you for being in my life.

Lauri, thank you for your unconditional love and support during the long days and nights when you had to run the family alone; words fail me here but:

Punta Mona, some day again!

A special thanks goes to my eldest daughter Jonna. Although it’s a parent’s privilege and prerogative to always be there for the child, in our case this is only half of the truth. Jonna, you have always been there for me and infused courage into me at times of insecurity and self-doubt. Thank you for the countless splashes of colour and joy you have brought into my life, as well as for the equally many occasions you have challenged the comfortable order of things I had been used to. You are the one person who, on an experimental level, has taught me the most valuable lessons about recognition and resistance. I don’t think I have ever met a person with more courage and vision. You are absolutely fabulous.

I dedicate this book to my daughters, Jonna Katariina Kastanja and Maija Sisko Vadelma – saying your names just makes me happy! – and their little brother Erkki, whom we are eagerly waiting to come into this world in a few weeks time.

(8)

LIST OF ORIGINAL PUBLICATIONS

This thesis is based on the following publications:

I Sanna Mustasaari and Mulki Al-Sharmani. ‘Between “official”

and “unofficial”: Discourses and practices of Muslim marriages in Finland,’ submitted to Oxford Journal of Law and Religion (Special Issue guest-edited by Rajnaara Akhtar, Annelies Moors and Rebecca Probert).

II Sanna Mustasaari. 2016. ‘CEDAW and the Riddle of Diversity:

Can Culture, Traditions or Religion Justify Economic Inequalities Embedded in Family Laws?’ in Maarit Jänterä-Jareborg and Hélène Tigroudja (eds.) Women’s Human Rights and the Elimination of Discrimination / Les droits des femmes et l’élimination de la discrimination, pp. 391–420. Leiden: Brill.

III Sanna Mustasaari. 2017. ‘Ruling on belonging: transnational marriages in Nordic immigration laws,’ Migration letters, 14:1, pp. 25–37.

IV Sanna Mustasaari. 2015. ‘The “nuclear family paradigm” as a marker of rights and belonging in transnational families,’ Social Identities, 21:4, pp. 359–372.

V Sanna Mustasaari. 2014. ‘The married child belongs to no one?

Legal recognition of forced marriages and child marriages in the reuniting of families,’ Child and Family Law Quarterly, 26:3, pp.

261–282.

VI Sanna Mustasaari. 2016. ‘Best interests of the child in family reunification - a citizenship test disguised?’ in Anne Griffiths, Sanna Mustasaari and Anna Mäki-Petäjä-Leinonen (eds.) Subjectivity, Citizenship and Belonging in Law: Identities and Intersections, pp. 123–145. Abingdon: Routledge.

The publications are referred to in the text by their Roman numerals.

The original articles are reprinted here with the kind permission of the copyright holders.

(11)

1 INTRODUCTION

“När någon har dött, är han död i hela världen. När någon har gift sig, är han då gift i hela världen?”¹ (“When someone has died, he is dead in the whole world. When someone has married, is he then married in the whole world?” - Translation SM) The question above is presented by Lennart Pålsson in the opening lines of his book on limping marriages and Swedish private international law, a classic in this field of scholarship in the Nordic countries. By posing this question, Pålsson wants to highlight the fact that marriage, contrary to the corporeal truth of life and death, is a social institution constituted by legal norms, and, hence, that the existence of this institution in another legal system depends on the norms governing its recognition.

An entirely other issue of recognition emerges if the death took place, say, in Mogadishu, and the widow (or widower) of the deceased person wanted to have the event registered in the Finnish population register. As Somali documents, such as birth or death certificates, are currently considered unreliable and cannot be legalised, the death cannot be registered. However, the widow (or widower) might in this circumstance receive ‘friendly’ advice to file for divorce in the local district court. This way at least one “death”, that of the marriage, can be verified, recognised and inserted in the population register.²

The “refugee crisis”, according to a number of scholars, is a crisis of border and imperialism, a crisis of “global apartheid”.³ It too raises issues of recognition, although issues of a very different nature than those described above. The common response to this crisis has been to redefine the relevant (legal) distinctions between

types of people on the move, in order to determine how to better distribute access to mobility. It is debated on which grounds, moral or economic, access to mobility should be distributed.⁴ [original italics]

1 Lennart Pålsson. Haltande äktenskap och skilsmässor: Komparativa studier över internationationelltprivaträttsliga problem beträffande äktenskap och skillsmässor med territorielt begränsad giltighet. Stockholm: P. A. Nordstedt & Söners förlag, 1966, 3.

2 The example above is based on the empirical material of this study and is mentioned in Article I.

3 The term coined by Jenna Lloyd. ‘Carceral Citizenship in an Age of Global Apartheid,’

Occasion 8 (2015), 1-15.

4 Imogen Tyler. ’The Marketization of Mobility: Some thoughts on Value, Movement and Classification,’ blog post in Cemore, http://www.lancaster.ac.uk/cemore/the-marketization- of-mobility-some-thoughts-on-value-movement-and-classification/ (accessed 11 September 2017).

(12)

The recent events in Europe highlight that not only the crisis at the borders, but the concept of border itself, brings about difficult issues of recognition.

Might these initial and intuitive observations about recognition have something in common, in spite of their obvious differences and incommensurabilities? The present study takes the view that they do. It examines how the law recognises transnational families and their family practices, and what forms of protection it offers to the members of transnational families and their family life. In particular, the focus is on how these families are recognised as members of society and the political community, and how their family relations mediate belonging; what role belonging plays in legal argumentation and how law shapes the belonging of an individual to a political community. Examining these issues, the study traverses three fields of law: family law, private international law and migration law.

1.1 TRANSNATIONAL FAMILIES AND BELONGING IN LAW: BACKGROUND AND GOALS OF THE STUDY

Families are important to individuals, just as they are important to communities. Families reproduce society symbolically, materially, socially, culturally and psychologically, and they have the capacity to reproduce, contest and reorganize definitive borders in communities. While it might be nearly impossible to accurately define what makes a family and what it is about the family or family relationships that the law should meddle in, it is clear that the most burning questions of justice are never far from relationships based on emotional bonds, needs and reciprocity. For me, the attraction of family law lies precisely here: in the power of family law as both a moral and legal project, a discourse that constructs and forms personhood and communities through the interrelationships it creates between the state, communities, and individuals – thus reshaping the material reality for individuals and families to, again, reconfigure and internalize as part of their symbolic worlds.

It is a widely accepted, though not problem-free, idea that communities adhere to certain constitutive values, a moral essence in a sense, and that the regulation of families is justified because of the common, public interest in what kinds of socializations and exercise of power takes place in families.

Communities seek to control families, to define families as part of their self- determination. The super community of modern times, the nation state, is no exception. For example, Cott, who studied the historical development of family norms in the United States, argues that regulating marriage was essential for the process of establishing both the external and internal borders of the new state, as marriage norms defined who could be included or excluded as a citizen. Struggles over marriage norms were focal in the struggles of several

(13)

Introduction

excluded groups at different periods of time: former slaves, women, Native Americans.⁵

While the liberal defence of the family⁶ takes as its starting point the idea of functional and cultural pluralism in families, stating that there is no single form or moral order of the family that can contribute to a just society and social life, the questions of multiculturalism and family law have occupied academic as well as political debates since the 1990s. As Grillo notes, contemporary European societies are multicultural and multi-ethnic, and have indeed been so for quite some time, but currently there is a widespread debate about cultural and religious difference and its limits.⁷ Normatively, the significance of pluralism is connected to the moral claim of due recognition of identities, reflected in the legal guarantees of minority rights. The promise of equal citizenship is central to minority rights, so the struggles over the position of minority identities happen in the arena of equal citizenship.

The contemporary debates relating to cultural and religious diversity are connected to processes of transnational, and often family-related, migration, but the phenomenon or debates concerning it are hardly historical novelties.⁸ According to Portes, Guarnizo and Landolt, compared to earlier histories of transnationalism, “contemporary transnationalism corresponds to a different phase in the world economy and to a different set of responses and strategies by people in a condition of disadvantage to its dominant logic”.⁹ As a field of research, transnationalism studies emerged from the need to grasp and approach analytically the diverse processes of decentralization of the nation state, in which fields of social action divert from the area governed solely by the nation state.¹⁰ Family is a location where diverse social relations and normative frameworks intersect and intertwine and where, in the words of Goulbourne et al., “ordinary people lead lives that transcend the boundaries

5 Nancy Cott. Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press, 2000.

6 David Archard. Family: A Liberal Defence. Basingstoke: Palgrave Macmillan, 2010.

7 Ralph Grillo, Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain. Farnham; Burlington, VT: Ashgate, 2015.

8Charsley offers several examples spanning marriage migration to and from British colonies, “war brides” of World War II, and Japanese “picture brides”. Maynes and Waltner note that during the Imperialist era, partly the incentive to establish colonies sprang from the need to relocate the surplus population, and often enough, to find suitable spouses for the unmarried. Colonial rule was justified by family metaphors, where the indigenous peoples were likened to children and colonial rulers to parents, and management of the relationship between the settlers and the indigenous people required state intervention and involvement in all aspects of family life. Katharine Charsley, 'Transnational Marriage,' in Katharine Charsley (ed.) Transnational Marriage: New Perspectives from Europe and Beyond. New York: Routledge, 2012, 1; Mary Jo Maynes and Ann Waltner. The Family: A World History.

Oxford: Oxford University Press, 2012; Sarah Katherine van Walsum. The Family and the Nation: Dutch Family Migration Policies in the Context of Changing Family Norms.

Newcastle upon Tyne: Cambridge Scholars Publishing, 2008.

9 Alejandro Portes, Luis E. Guarnizo and Patricia Landolt. ‘The study of transnationalism:

pitfalls and promise of an emergent research field,’ Ethnic and Racial Studies 22:2 (1999), 227.

10 Nina Glick Schiller and Peggy Levitt, 'Conceptualizing Simultaneity: A Transnational Social Field Perspective on Society,' International Migration Review 38:3 (2004), 1002;

Steven Vertovec, Transnationalism. London: Routledge, 2009.

(14)

of nation-state, and potentially threaten other social and cultural boundaries set by race, ethnicity, and so forth.”¹¹

In this context it is worth noting that not only the families in the focus of this study are transnational but also that law is increasingly transnational.

Histories of knowledge embodied in legal norms and doctrines travel and become intertwined with national norms, each with their own histories. For example, while colonial dynamics might be of little importance in the Finnish context, the human rights law concerning migrants’ rights to family life is largely based on the racialized exclusion of colonial subjects during the drafting of the European Convention on Human Rights (ECHR).¹² Furthermore, to a large extent they are developed in the case law as responses to the applications filed against former colonial settler states, such as the UK and the Netherlands.

The three fields of law in the focus of this study, family law, private international law and migration law, are intertwined in a number of ways, although in the doctrinal logic of the legal system they are strictly separate.

Examples of their interconnections are many, but a few can be mentioned to illustrate: In the case of Cojan (C—673/16), currently pending before the Court of Justice of the European Union (CJEU), the court is called to rule whether it follows from the free movement rights of EU citizens that a marriage of two people of the same sex will have to be recognised in a state that does not provide for legal recognition of same sex relationships.

Another example concerns the practical interface between child law and migration law: when an on-going and affective parent-child relationship is a condition for the renewal of the parent’s residence permit, it can de facto be the reason why custody or access arrangements are officially recorded in agreements or court orders in specific ways so that the agreement would bear witness to such relationship.¹³ In her study on divorce in transnational families, Sportel discovered that law enables members of transnational families differently and that marital power relations explain how law becomes mobilised.¹⁴ There is reason to believe that power relations are significant also in the context custody and access, especially if the residence status of the parent depends on the legal formulation of these rights and obligations.

Yet another example concerns intersections of the system providing international protection of refugees and the system designed to prevent child abductions: in a recent case the Finnish Supreme Court was called to evaluate whether the Hague Convention on Child Abduction should be applied in a situation where the child had been granted asylum and refugee status. Both parents were guardians of the child, but the father had fled Belarus and taken the child with him to Finland without the mother’s permission. Both father

11 Harry Goulbourne, Tracey Reynolds, John Solomos, and Elisabetta Zontini.

Transnational Families: Ethnicities, Identities and Social Capital. Abingdon: Routledge, 2010, 11.

12 Marie-Bénédicte Dembour. When Humans Become Migrants: Study of the European Courts of Human Rights with an Inter-American Counterpoint. Oxford: Oxford University Press, 2015.

13 This point has fequently come up in my ongoing research, especially in the interviews and informal discussions with professionals in the field of legal aid and child welfare.

14 Iris Sportel. Divorce in Transnational Families: Marriage, Migration and Family Law.

London: Palgrave Macmillan, 2016, 248.

(15)

Introduction

and child were granted asylum and refugee status. The mother of the child requested that the child be returned to her in Belarus, which was what eventually happened.¹⁵

However, while the three examples above are about intersecting legal fields and regimes, this study approaches the interconnections between the legal fields from a slightly different perspective. By looking at how trasnational families are regulated at different ‘sites’, it attempts to move beyond merely looking at law as a doctrinal practice. To view the regulation and control of families and the questions of social justice from the perspective of transnational families and transnational social and normative spheres means looking at local phenomena, for example religious family law, as something that takes place in a transnational space, where local cultures, policies and authorities expand beyond the remit of the nation state in complex ways. This means that an investigation into transnationalism and law is an investigation into legality and the process in which it is constructed, as well as into the legal borders of and within the nation state. The myriad ways in which these borders are erected and maintained, are also key to understanding how they can be contested and belongings to communities renegotiated. The goal of this study is to rethink grounds for contemporary solidarity – to rethink “us”, the political and legal community, as a community of responsibility where the precariousness of all lives could be recognised.

This synthesis of the study is divided into four chapters. The present chapter introduces the research questions and research design, research materials, methods and ethical considerations, and the second chapter establishes the theoretical framework adopted as well as the theoretical tools used in the analysis. The third chapter examines, first, the three fields of law and their doctrinal foundations in relation to themes of the present study and then moves on to present the findings made in the study by examining how different aspects of intersectionality show at different sites of the study and which techniques of government it renders visible in the analyses. The fourth chapter concludes the synthesis with a reflection on the research questions and new avenues for research that the study brings.

1.2 RESEARCH QUESTIONS AND RESEARCH DESIGN

1.2.1 RESEARCH QUESTIONS

Ever since the famous essay by Marshall, it has been clear that formal citizenship, and legal rights attached to citizenship status, do not rule out the inequalities prevailing in capitalist society, but that they are “necessary to the maintenance of that particular form of inequality”.¹⁶ Citizenship studies have broadened the notion of citizenship from the narrow understanding of citizenship as a formal legal status into a broader, socio-cultural definition of

15 KKO:2016:65, the Supreme Court of Finland, 14 October 2016.

16 T.H. Marshall. Citizenship and Social Class and other essays. Cambridge: Cambridge University Press, 1950, 33.

(16)

membership in order to include various axes of exclusion and inclusion that shape the substance of citizenship.¹⁷ ‘Belonging’ is constitutive of citizenship in the sense that it encompasses the various factors and processes that denote membership in a community. In this work, by ‘belonging’ I refer to, firstly, the material conditions such as formal status norms that define who is considered a member of the community, the “authorized ‘we’”,¹⁸ and secondly, the subjective element of identity included in that relationship.¹⁹

The subjective element of ‘belonging’ includes identities and subjectivities that are institutionally accepted as entitled insiders, and often it emerges as authorised knowledge produced in the legal process about the individual and about whether their personal identity merits the benefit of belonging.

Belonging can, thus, find expression in the level of legal norms that define the recognition of family relationships (e.g. recognition of relationships in private international law and recognition of relationships in immigration law), or the accessibility into legally recognised family institutions such as marriage, or in the legal norms that place different families in hierarchical order, for example, on the basis of family form or the conditions under which the family was formed (e.g. the distinction between new and old families in immigration law).

Furthermore, belonging is interrogated and sometimes contested in the legal practice as a way of distinguishing between just and unjust, or legitimate and illegitimate, based on the individual merits of the case, for example, as a part of the proportionality analysis.

The present study examines the recognition of transnational family relationships and the ways in which this recognition generates belonging or non-belonging by investigating the following research questions:

1. In the six thematically related studies included in this research,

17 In particular feminist inquiries on citizenship, research on children’s citizenship, multicultural citizenship, intimate citizenship and global citizenship as well as the emerging inquiries into religious citizenship have contributed to the intersectional understanding of citizenship as a layered position marked by discontinuities and contradictions. See for example Antonella Invernezzi and Jane Williams. Children and Citizenship. Los Angeles:

SAGE Publigations, 2008; Ruth Lister. Citizenship: Feminist Perspectives. Basingstoke:

Palgrave Macmillan, 2003. Seyla Benhabib. Another Cosmopolitanism. Oxford: Oxford University Press, 2006; and The Rights of Others. Cambridge: Cambridge University Press, 2004; Sasha Roseneil. ’Intimate Citizenship: A Pragmatic, Yet Radical, Proposal for a Politics of Personal Life,’ European Journal of Women's Studies 17:1 (2010) 77-82; and Cecilie Thun,.

’Norwegiannes as Lived Citizenship: Religious Women Doing Identity Work at the Intersections of Nationality, Gender and Religion,’ Nordic Journal of Religion and Society 25:1 (2012): 1-25.

18 Anna Bohlin, 'The Politics of Locality: Memories of District Six in Cape Town,' in Nadia Lovell (ed.) Locality and Belonging, 168-188. New York: Routledge, 1998, 163.

19 In sociological literature ‘belonging’ is depicted as incorporating both the personal, intimate feelings of “being ‘at home’ in a place (place-belongingness) and as a discursive resource that constructs, claims, justifies, or resists forms of socio-spatial inclusion / exclusion (politics of belonging)”. Marco Antonsich. Marco. ‘Searching for Belonging – An analytical Frame,’ Geography Compass 4:6 (2010), 644. See also: Floya Anthias. ‘Identity and Belonging: conceptualisations and political framings,’ Working Paper No. 8 (2013) KLA Working Paper Series. Research Network for Latin America; Nira Yuval-Davis. ‘Power, Intersectionality and the Politics of Belonging,’ FREIA Working Paper No. 75 (2011). Aalborg Denmark.

(17)

Introduction

a. how do transnational family relationships come to assume legal character;

b. how and for what purposes is ‘legality’ invoked and what meanings does it bear?

2. How does the regulation and recognition of transnational family relationships

a. contribute to the production of belonging and non-belonging, and thus create or reproduce social postionality and axes of inclusion and exclusion; and

b. how are these belongings constructed in legal practice and legal argumentation, especially at the intersections of different legal fields?

3. What new avenues might a recognition theoretical framework open for

a. understanding the role of law in the struggles for social justice, especially through the logic of distinctions made in legal practice concerning belonging; and

b. immanent critique and rethinking of law in relation to social inclusion and exclusion?

The study comprises six thematically related studies (Articles I to VI), that all approach the first and the second research question from slightly different angles. The final research question concerns the overarching theme of the research project, and will be addressed in this synthesis. In the following section, I will discuss the design of this research, which rests on the idea of multiple sites, in order to explain what ties these six studies together and why I chose these particular ‘sites’ of research, as well as discuss some of the consequences of the choices made (1.2.2). I will then present the research materials and methods used (1.3.1) and conclude the chapter with a brief reflection on research ethics (1.3.2).

1.2.2 RESEARCH DESIGN: COMPOSING MULTI-SITED RESEARCH My initial plan was to study the concept of the family in a multicultural and religiously diverse society, from a legal dogmatic perspective of family law and private international law. Related to migration, Islamic family practices emerged in western courts as cross-border family law cases, which by and large meant that the discussion over religious family law happened in the arena of private international law. Academics have provided rich analyses concerning the recognition and consequences of foreign Islamic marriage,²⁰

20 Mathias Rohe. ‘Islamic Law in German Courts,’ Hawwa: Journal of Women in the Middle East and and the Islamic World 1:1 (2003), 46-59; Maarit Jänterä-Jareborg. ’On the Cooperation between Religious and State Institutions in Family Matters: Nordic Experiences,’

in Prakash Shah, Marie-Claire Foblets and Mathias Rohe (eds.) Family, Religion and Law:

Cultural Encounters in Europe, 79-114. Farnham and Burlington: Ashgate, 2014.

(18)

divorce²¹ and even questions of inheritance.²² However, as the study proceeded it became clear that the recognition and regulation of family happens in other legal arenas as well. In fact, for the migrating families, the control of family life imposed by migration law can bear just as much or even more significance than the civil law aspects of the recognition of marriage and divorce. Moreover, while the doctrinally oriented analytical legal thinking tends to keep these different fields of law strictly apart, initial research into the case law seemed to suggest that they are in many respects intertwined.

In the spring of 2012 I came across a case from the Swedish Migration Court of Appeal (migrationsöverdomstolen), which is the supreme instance in migration issues in Sweden.²³ The case, which concerned recognition of a child marriage and a (claimed) forced marriage in the migration context, invoked many questions that, while being substantially about migration law, also concerned the research questions I had sketched out for my project. The marriage was eventually considered valid (in the context and for the purposes of the Swedish Aliens Act) despite strong indications that the applicant, a child herself, had been forced into marriage. The argument of private international law about the recognition of the marriage emerged as an incidental question and effectually determined the end-result of the case.

This case is included in this study and analysed in Article V.

Trying to figure out why, despite all the doctrinal and analytical clarity of its argumentation, the case was so disturbing, I initially suspected that something significant yet only partially articulated was underpinning the way in which law seemed to work with the intersecting and overlapping general doctrines. This important issue was one of ‘belonging’, of being regarded either as an insider or an outsider. The position of belonging seemed to depend on multiple affiliations and subjectivities formed at the intersections of family law, private international law and migration law. As a result of this initial finding, as well as my affiliation with an interdisciplinary research project on transnational Muslim families,²⁴ the focus of this study shifted from minority families and religious family law towards transnationalism and its impact on families, as well as towards questions such as how the state governs its population by regulating the transnational family.

The previous research has convincingly argued that the relationship between family norms and social control in other fields, such as immigration and integration, are mutually constitutive.²⁵ Van Walsum, for example, examined the history of Dutch nationality and immigration law in the period from 1945 to 2000 in the context of changes that took place during the same

21 Rubya Mehdi, Werner Menski and Jorgen Nielsen (eds.) Interpreting Divorce Laws in Islam. Copenhagen: DJOF Publishing, 2012; Pascale Fournier. Muslim Marriage in Western Courts: Lost in Transplantation. Farnham: Ashgate, 2010.

22 Mosa Sayed. Islam och arvsrätt i det mångkulturella Sverige: En internationellt privaträttslig och jämförande studie. Uppsala: Iustus Förlag, 2009.

23 Case MIG 2012:4, Kammarrätten i Stockholm, Migrationsöverdomstolen, 5 March 2012.

24 Academy of Finland research project entitled ‘Transnational Muslim Marriages in Finland: Wellbeing, Law, and Gender’. The project is led by Dr. Marja Tiilikainen at the Department of Social Research, University of Helsinki.

25 Saara Pellander. Gatekeepers of the Family - Regulating Family Migration to Finland.

(Doctoral dissertation, 2016). Department of Political and Economic Studies, University of Helsinki; Cott 2000; Van Walsum 2008.

(19)

Introduction

time in Dutch family norms. She found continuities between the present restrictive family migration policies in the Netherlands and the earlier dynamic between family norms and racist modes of exclusion in the Dutch East Indies.²⁶ Instead of sketching a racist conspiracy underlying the legal system, van Walsum drew on the idea, originally expressed by Sassen,²⁷ that a shift is taking place “from a nationally oriented order of the post-war Welfare State to a more globally oriented neo-liberal one”, in which capabilities and rationalities developed within a previous order are re-constituted as part of a new organising logic. In the process, new “foundational realignments” are generated.²⁸

These observations led me to approach the topic of my research by looking at the different sites in which the recognition (and regulation) of transnational family life and family relationships takes place, how the ‘legality’ of relationships is constructed on these sites, who are the actors in the process, and what kind of “foundational realignments” are generated by the process.

The term ‘site’ is used here to describe the different perspectives from which I approach my research questions, the different research designs of the studies, and the ways in which these are connected. In this descriptive use the term lacks any clear conceptual definition. However, adopting the idea of “multi- sited” research design is inspired by the methodological debates in the field of ethnography and the notion of multi-sited ethnography.²⁹

Multi-sitedness, in essence, means following the thread of a process in which cultural meanings circulate instead of seeking to offer a holistic representation of the research subject.³⁰ The matter traced does not have to be a people or an entity; it can exist within the realm of discourse and modes of thought.³¹ It can be, for example, a conflict or a logic of regulation or the idea of ‘legality’ in the context of family relationships. At the same time, however, it is crucial to keep in mind the fact that the paths that the researcher “follows”

or the field of the inquiry are not “natural” but actively constructed in the research design as the outcome of choices made.³² The research subjects are

“nodes in distributed knowledge systems”,³³ constantly in motion and

“ungraspable in any definitive sense”.³⁴ Constructing the field of research within distributed knowledge systems also means that it can be approached from various positions of expertise and, consequently, practise different

26 Van Walsum 2000, 20.

27 Saskia Sassen. Territory, authority and rights. Princeton: Princeton University Press, 2006.

28 Van Walsum 2008, 42.

29 See for example: George E. Marcus. ‘Ethnography in/of the world system: The emergence of multi-sited ethnography,’ Annual review of anthropology (1995), 95; Simon Coleman and Pauline Von Hellermann (eds.) Multi-sited Ethnography: Problems and Possibilities in the Translocation of Research Methods. New York: Routledge, 2011.

30 Marcus 1995, 97 and 98.

31 Marcus 1995, 108.

32 Simon Coleman and Pauline Von Hellerman. ‘Introduction: Queries, Collaborations, Calibrations,’ in Coleman, Simon, and Pauline Von Hellermann (eds). Multi-sited Ethnography: Problems and Possibilities in the Translocation of Research Methods, 1-15.

New York: Routledge, 2011.

33 Coleman and Hellerman, 2011, ‘Introduction’, 5.

34 Coleman and Hellerman, 2011, ‘Introduction’, 7.

(20)

methods of analysis.³⁵ In the following, I will briefly discuss some of the consequences of the methodological choices made in this study, especially with regard to the multi-sited approach adopted.

This study seeks to shed light on the various interconnections between the fields of family law, private international law and migration law, as well as the recognition orders these fields embody, in order to analyse how the ways in which transnational families are regulated in law generate and maintain social hierarchies and exclusion. As explained above, the study analyses these processes at various sites. The downside of this way of framing the research project is the lack of coherence and coverage of the findings when viewed from the perspective of the systematic order of a particular legal field.³⁶ For the purposes of this study adopting the starting point of systematic legal analysis would mean losing sight of the interactions and processes in which systematic logic takes part in reproducing hegemonies and hierarchies. However, the starting point that law intertwines with politics and takes an active part in reproducing our social order by legitimising it is not taken to mean that the doctrinal logic of law would be unimportant or uninteresting for the study.

‘Transnational families’ are anything but a “natural” group or a monolithic group of people.³⁷ The sites of inquiry in the study, likewise, are not “natural”

but constructed as part of and for the purposes of the analysis. This bears relevance to how the transnational families at the centre of the analysis are constructed. The research site and the reseach subject are mutually constitutive; the construction of the research site constitutes which aspects of transnationalism are investigated and what ‘transnational family’ means in each context. De Hart defines her research subject, ‘mixed intimacy’, as not coming from

pre-existing racial or ethnic differences between the partners, but [as something which] depends on how race and ethnicity are socially and legally constructed. Hence, a mixed marriage is a marriage between partners of two groups that are considered to be distinct racial or ethnic groups by society at a certain time and place.³⁸

35 Marcus, George E., ‘Multi-sited Ethnography: Five or Six Things I Know About it Now,’

in Simon Coleman and Pauline Von Hellermann (eds). Multi-sited Ethnography: Problems and Possibilities in the Translocation of Research Methods, 16-32. New York: Routledge, 2011.

36 The six articles include case analyses of law in different national and regional contexts (Sweden, Finland, EU law, and European and international human rights law). The pitfalls of selectively including such a vast array of material from various normative sources should be evident. The sites of the study are have been constructed in relation to space and geographical locations but whilst these are taken as particular features of the site that shape the power relations constitutive of the state but they are not definitive of it. Each article describes the context as well as the level of analyses for the purposes and scope of that article. Observations and arguments presented in this synthesis move on a general European level, unless a particular local context is specifically mentioned.

37 See the discussion in Sportel 2016, 257-258.

38 Betty de Hart. Unlikely couples: Regulating mixed sex and marriage from the Dutch colonies to European Migration Law. Amsterdam: Universiteit van Amsterdam, 2015, 10.

(21)

Introduction

In a similar vein, ‘transnational families’ are demarcated slightly differently in each study included in this study. For example, transnational families are not necessarily about culture or religious minorities, let alone Muslims and Islam.

However, religion, in particular Islam, often intersects with transnational life trajectories due to the current migration patterns from Muslim countries to Europe. The number of Muslims living in Europe has increased rapidly; today Islam is the second largest religion for example in Sweden, Denmark and Norway.³⁹ Migrant Muslim families are, furthermore, in several countries at the centre of regulative family politics.⁴⁰ In the Finnish context, most Muslims have a migrant background which means that transnationalism, migration, family and Islam intersect in various ways. Furthermore, it is important to note that the impact of gender in transnational families is not reducible to women’s rights and gender ideologies reflected in debates over women’s rights and culture.⁴¹ Gender ideologies are, however, central in the regulation of relationships and intimacy and the debates over gender equality have emerged particularly in relation to Muslim identities and family practices and norms.

One could also argue that ‘transnational’ as a term exists in relation to

‘national’, which means that it only becomes visible in contrast to the

“normative national”. One conclusion drawn on the basis of the analysis provided in this study is that this normatively construed ‘national’ creates social marginalisation and results in the generation of “other” identities in legal argumentation. In part, this is of course a choice; as this study is concerned with social marginality and prevailing inequalities, a conscious choice was made in designing the research to examine those instances where transnationality creates marginality and techniques through which this effect is achieved. This, however, is not to say that all transnational families were socially marginalised or precarious in the same way.

1.3 RESEARCH MATERIAL, METHODOLOGY AND RESEARCH ETHICS

1.3.1 DATA, MATERIALS AND RESEARCH METHODS

The present thesis consists of six thematically related studies located on four different sites. The first of these four sites is that of ‘legality’ of Muslim

39 Maarit Jänterä-Jareborg. ‘The Legal Scope for Religious Identity in Family Matters – The Paradoxes of the Swedish Approach,’ in Jane Mair and Esin Örücü (eds.) The Place of Religion in Family Law: A Comparative Search, 73-96. Cambridge: Intersentia, 2011.

40 See for example: Grillo 2015; Jessica Robyn Cadwaller and Damien W. Riggs. ‘The State of the Union: Toward a Biopolitics of Marriage’ M/C Journal, 15:6 (2012); Annelies Moors and Vanessa Vroom-Najem. ‘Converts, Marriage and the Dutch Nation-State: Contestations about Muslim Women's Wellbeing,’ in Marja Tiilikainen, Mulki Al-Sharmani and Sanna Mustasaari (eds.) Wellbeing of Transnational Muslim Families: Marriage, Law and Gender.

Routledge, forthcoming.

41 Betty de Hart, Nadia Sonneveld and Iris Sportel. ‘New Perspectives on Gender in Shari’a- Based Family Law Studies: Moving Beyond the Women’s Issue,’ Religion & Gender 7:1 (2017), 42-52.

(22)

marriages in Finland. This research site, in fact, consists of various sites at which the ‘legality’ of Muslim marriages is constructed and may be contested.

Article I traces the ‘legality’ of Muslim marriages in mosques, practices of selected individual Muslims, and state institutions concerned with the registration and validity of marriages.⁴² It applies a different method than the other articles, that of ethnography combined with an empirical analysis of a large body of cases collected through the district courts and local register offices, and it explicitly adopts the approach of multi-sited ethnography. As the method of research adopted in Article I was different than in the other studies, the data will be described in more detail than it will be described in the context of Articles II to VI.

Article I draws on several data sets, which began to be collected after May 2016.⁴³ These data include eight tape-recorded interviews with imams and other individuals affiliated with mosques⁴⁴; four tape-recorded interviews with individual Muslim women⁴⁵; and five tape-recorded interviews I conducted with staff at local register offices (maistraatti).⁴⁶ In addition to the interviews that I conducted by myself or together with my colleague Dr. Al- Sharmani, the article also draws on her extensive fieldwork and previous interviews with Muslim women and men on the themes of marriage and divorce. The interview guides we used were semi-structured and delved into the marriage conclusion⁴⁷ practices (concerning both mosques and individuals) and the registration and recognition of family relationships in different contexts (local register offices). The analysis is also informed by four

42 This article was written last of the six articles and is still pending acceptance for publication.

43 The article is written in collaboration between my on-going study on marriage practices, entitled ‘Governing plurality: Marriage practices and the law’, and two studies undertaken by my colleague and co-author Dr. Mulki Al-Sharmani. In the first one of these, Al-Sharmani studies the marriage norms and practices of Somalis in Finland; the interplay between marriage and divorce practices and the transnational family practices and ties of couples and families; and the ways in which women and men navigate multiple legal systems in processes of marriage and divorce. The project is entitled ‘Transnational Somali Muslim Families in Finland: Discourses and Realities of Marriage’, and it is undertaken together with Dr.

Abdirashid Ismail. In the second one, which is entitled ‘Islamic Feminism: Tradition, Authority and Hermeneutics’, Al-Sharmani researches how contemporary Muslims in the transnational and national contexts of Egypt and Finland engage with their religious textual and legal tradition to address problematic issues pertaining to gender roles and relations, and their contestations over religious norms on marriage and divorce practices in light of their changing lived realities, and their acquiring new forms of religious knowledge.

44 The interviews were conducted together with Dr. Al-Sharmani.

45 The interviews were conducted together with Dr. Al-Sharmani.

46 In addition to these interviews, the article draws on Al-Sharmani’s previous research in which she interviewed individuals and studied a mosque programme on family wellbeing through the method of participant observation. See: Mulki Al-Sharmani, ‘Striving against the 'Nafs' Revisiting Somali Muslim Spousal Roles and Rights in Finland,’ Journal of Religion in Europe 8 (2015) 101; Al-Sharmani and Abdirashid Ismail, ‘Marriage and Transnational Family Life among Somali Migrants in Finland’ Migration Letters 14 (2017) 38-49; and Al- Sharmani, ‘Muslim Family Wellbeing and Integration in Finland: The Role of Mosques’ in Marja Tillikainen, Mulki Al-Sharmani, and Sanna Mustasaari (eds.), Wellbeing of Transnational Muslim Families: Marriage, Law and Gender. Routledge, forthcoming.

47 The term ‘marriage conclusion’ is established in scholarly discourse on religious marriages, but it is somewhat infelicitious in that it might suggest its opposite, namely

‘divorce’.

(23)

Introduction

unrecorded interviews and informal dicussions with lawyers at the public legal aid service, child supervisors, and NGOs. In addition to the interview data, the article draws on cases and documents I investigated in four Local register offices and three district courts. In order to examine the problems relating to the recognition of transnational family relationships in the contexts of registration of family relationships, investigation of marriage impediments and the confirmation of paternity, I went through 490 document files of cases from 2016 and 2017 in the Local register office of Uusimaa (Uudenmaan maistraatti);⁴⁸ 563 document files from 2016 in the Local register office of Itä-Suomi (Itä-Suomen maistraatti);⁴⁹ and 527 document files from 2017 in the Local register office of Länsi-Suomi (Länsi- Suomen maistraatti).⁵⁰ In addition, I read through a total of 64 cases of annulment of paternity during 2014–2015 in three district courts.⁵¹

The second site of the research is that of international law and the discourse of women’s rights in relation to culture, traditions and religion.

This study, Article II, was written at the 2014 Centre of Studies and Research of the Hague Academy of International Law. The topic of the article was assigned to deal with the issue of whether culture, tradition or religion can justify treating women differently from men within family law. The article focuses on the issue of culture and human rights law through a discussion of the concept of equality underpinning the Convention on Elimination of Discrimination Against Women (CEDAW) in the context of its Article 16, which addresses equality in the family and covers a wide range of issues from equal reproductive rights to equal parental rights and responsibilities, and in particular the economic consequences of marriage, family relations and their dissolution, an issue on which the Committee adopted its 29th General recommendation in 2013. The method and approach of the article is largely a review of existing feminist and family law literature and research on the context of culture and women’s rights, against which the discussion about equality and legitimacy of the CEDAW framework is set. Through its consideration of the CEDAW and the work of the Committee, the article analyses the hegemonic structures of human rights discourse, in particular

48 These documents were about the registration of family relationships. The files included correspondence between the Local register office and the customer in cases in which the registration applied for could not, for one reason or another, be carried out. In these cases a formal decision is very rarely made, but the correspondence is recorded in archives. The files may, for example, contain a request to provide further documents, or an announcement that the provided documentation is not considered reliable, for example because the person has not mentioned the relationship when interviewed by migration authorities at the time of first entry.

49 These cases concerned the investigation of marriage impediments. The Local register office of Itä-Suomi is in charge of developing practices concerning the investigation of marriage impediments, which is why the study was undertaken there.

50 These cases concerned the confirmation of paternity. There are approximately 10 000 cases annually and majority of them is concentrated in the Local register office of Länsi- Suomi.

51 The cases make up 40 per cent of the total 160 cases in the whole country. The courts that formed the basis for the study were located in the Finnish cities of Helsinki, Tampere and Turku, which all have large immigrant populations relative to the rest of the country. The Helsinki District court is the largest of the 27 Finnish district courts, and its jurisdiction has the largest Muslim and immigrant populations.

(24)

tendencies to frame religion as irreconcible with equality, and the recognition of “counterhegemonic” identities.

The third site in the set of studies is that of the migration laws of the Nordic countries concerning family reunifiction. Article III adopts an approach of descriptively reviewing the immigration regimes concerning marriage migration in the Nordic countries, all of which have introduced considerable restrictions in their Aliens Acts in recent years. The case also includes a note on the case of Biao v. Denmark, which was decided in the Grand Chamber of the European Court of Human Rights (ECtHR) in 2016.

The purpose of this article as part of this study is to offer a contextual background on the regulation of transnational families in migration laws of the Nordic countries and point out how the conceptions of belonging underpin these laws, as well as point to the struggles for recognition that were fought in the judgment of the ECtHR, particularly in the dissenting opinions.

The article demonstrates, furthermore, that due to the current high expectations for income requirements, the right to family reunification remains unachievable for a significant number of third country nationals.

The fourth site of the study is that of “court”, and particularly legal argumentation practised in the courts. Rather than understanding “court”

here as a particular institution, the site of the court is constructed as a forum of argumentation in which legal norms are interpreted and the doctrine is enacted and re-enacted. At this site, Articles IV and V examine how, by invoking the discourses of status and relationship (or conduct, the word used for essentially the same phenomenon in Article IV), the tensions and intersections of different legal fields of private international law, family law and migration law are controlled and manipulated, while at the same time the image of unitary law is still rigidly maintained. Like articles IV and V, article VI too examines a case of family reunification, but this time the rights of the child and EU citizenship are central to the argument.

In these three articles, the method is dogmatic in terms of describing the legal problem at the centre of the case. Articles V and VI each offer a close reading of a particular case, which was selected because it represented a theoretically fascinating problem and was decided at a normatively high level (national supreme instances and the EU Court of Justice). In order to situate these cases and describe the legal norms adequately, other case law and legal sources have been brought to bear. However, while the method of description is doctrinal, the method of analysis is not purely dogmatic.

In the above I have described the data and methods of each study. The way in which this study combines methodologies of qualitative multi-sited ethnography and legal analyses of norms, doctrines and discourses in courts is also intrinsic to its overall methodology, which could generally be described as socio-legal. What ‘socio-legal’ means in this study refers beyond the methods adopted in each individual study, to the theoretical framework connecting these choices and ultimately to the way in which ‘law’ is understood in this study. The theoretical framework is important in explaining the connections between the legal fields and research sites as well as in connecting the findings to a larger socio-theoretical framework. In this work the theoretical framework is constructed around the question of the meaning and place of recognition relations and belonging in law, as well as the meaning and place of law in these relations. This theoretical framework

Rethinking Recognition : Transnational Families and Belonging in Law